R v GN

[2020] NSWDC 59

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v GN [2020] NSWDC 59
Hearing dates:	12 November 2018, 13 November 2018, 14 November 2018, 15 November 2018, 16 November 2018, 19 November 2018, 16 July 2019, 17 July 2019, 18 July 2019, 19 July 2019, 22 July 2019, 23 July 2019, 24 July 2019, 15 November 2019, 12 December 2019
Date of orders:	24 March 2020
Decision date:	24 March 2020
Jurisdiction:	Criminal
Before:	Lerve DCJ
Decision:	Guilty to all counts on indictment
Catchwords:	CRIME – Child sex offences – assault with act of indecency <10 CRIME – Child sex offences – assault with act of indecency <16 CRIME – Child sex offences – sexual intercourse with child <10
Legislation Cited:	Evidence Act, 1995 Crimes Act, 1900
Cases Cited:	R v Bauer (a pseudonym) [2018] HCA 40 HML v The Queen [2008] HCA 16 KRM v The Queen (2001) 206 CLR 221 R v Louizos [2009] NSWCCA 71 Mahmood v Western Australia [2008] HCA 1 NZ v R (2005) 63 NSWLR 628
Category:	Principal judgment
Parties:	Director of Public Prosecutions (the Crown) GN (Accused)
Representation:	Solicitors: Ms M Morgan (for the Crown) Mr D Barron (for the Accused)
File Number(s):	2015/229073
Publication restriction:	No publication of the name of the complainants or anything that might identify them, including the name of the accused.

Reasons for verdicts in judge alone trial.

THE COURT REMINDS ALL CONCERNED THAT THE RELEVANT LEGISLATION PROVIDES THAT THERE MUST BE NO PUBLICATION OF THE NAMES OF THE COMPLAINANTS OR ANYTHING THAT MIGHT IDENTIFY THEM. GIVEN THE FAMILIAL RELATIONSHIP BETWEEN THE COMPLAINANTS AND THE ACCUSED THAT PUBLICATION RESTRICTION EXTENDS TO THE ACCUSED.

Charges

1. On 18 November 2018 the accused pleaded not guilty to a number of counts on the indictment. During the course of hearing the evidence the indictment was amended in respect of some of the counts. Both parties took the view that there was no need to have the accused re-arraigned, noting that the accused maintained his pleas of not guilty. Despite some initial reservations I of the opinion that this was an appropriate course to adopt. The charges as they appear on the amended indictment are as follows:

1. That (he) between 21 August 2003 and 21 August 2005 at Young in the State of New South Wales, did assault TWN, a person then under the age of 10 years, namely 7 or 8 years, and at the time of the assault committed an act of indecency on TWN, contrary to s 61M(2) of the Crimes Act, 1900; and further

2. That (he) between 21 August 2003 and 21 August 2005 at Young in the State of New South Wales, did assault TWN a person then under the age of 10 years, namely 7 or 8 years and at the time of the assault committed an act of indecency on TWN, contrary to s 61M(2) of the Crimes Act, 1900; and further

3. That (he) between 21 August 2003 and 21 August 2005 at Young in the State of New South Wales, did assault TWN a person then under the age of 10 years, namely 7 or 8 years and at the time of the assault committed an act of indecency on TWN, contrary to s 61M(2) of the Crimes Act, 1900; and further

4. That (he) between 21 August 2003 and 21 August 2005 at Young in the State of New South Wales, did assault TWN, a person then under the age of 10 years, namely 7 or 8 years, and at the time of the assault committed an act of indecency on TWN, contrary to s 61M(2) of the Crimes Act, 1900; and further

5. That (he) between 21 August 2003 and 21 August 2005 at Young in the State of New South Wales, did assault TWN, a person then under the age of 10 years, namely 7 or 8 years, and at the time of the assault committed an act of indecency on TWN, contrary to s 61M(2) of the Crimes Act, 1900; and further

6. That (he) between 21 August 2003 and 21 August 2005 at Young in the State of New South Wales, did assault TWN, a person then under the age of 10 years, namely 7 or 8 years, and at the time of the assault committed an act of indecency on TWN, contrary to s 61M(2) of the Crimes Act, 1900; and further

7. That (he) between 21 August 2003 and 21 August 2005 at Young in the State of New South Wales, did assault TWN, a person then under the age of 10 years, namely 7 or 8 years, and at the time of the assault committed an act of indecency on TWN, contrary to s 61M(2) of the Crimes Act, 1900; and further

8. That (he) between 21 August 2003 and 21 August 2005 at Young in the State of New South Wales, did assault TWN, a person then under the age of 10 years, namely 7 or 8 years, and at the time of the assault committed an act of indecency on TWN, contrary to s 61M(2) of the Crimes Act, 1900; and further

9. That (he) between 21 August 2003 and 21 August 2005 at Young in the State of New South Wales, did assault TWN, a person then under the age of 10 years, namely 7 or 8 years, and at the time of the assault committed an act of indecency on TWN, contrary to s 61M(2) of the Crimes Act, 1900; and further

10. That (he) between 1 January 2010 and 31 December 2010 at Young in the State of New South Wales, did assault KN, a person then under the age of 16 years, namely 4 or 5 years, and at the time of the assault committed an act of indecency on KN, contrary to s 61M(2) of the Crimes Act, 1900, and further

11. That (he) between 1 January 2010 and 31 December 2010 at Young in the State of New South Wales, did have sexual intercourse with KN, a child then under the age of 10 years, namely 4 or 5 years, contrary to s 66A(1) of the Crimes Act, 1900, and further

12. That (he) between 1 January 2010 and 31 December 2010 at Young in the State of New South Wales, did assault KN, a person then under the age of 16 years, namely 4 or 5 years, and at the time of such assault did commit an act of indecency on the said KN, contrary to s 61M(2) of the Crimes Act, 1900, and further

13. That (he) between 1 January 2010 and 31 December 2010 at Young in the State of New South Wales, did have sexual intercourse with KN, a child then under the age of 10 years namely 4 or 5 years, contrary to s 66A(1) of the Crimes Act, 1900, and further

14. That (he) between 1 January 2010 and 31 December 2010 at Young in the State of New south Wales, did assault KN, a person then under the age of 16 years, namely 4 or 5 years, and at the time of such assault did commit an act of indecency on the said KN, contrary to s 61M(2) of the Crimes Act, 1900, and further

15. That (he) between 1 January 2014 and 31 December 2015 at Young in the State of New South Wales, did assault KN, a person under the age of 16 years, namely 9 or 10 years, and at the time of the assault committed an act of indecency on KN, contrary to s 61M(2) of the Crimes Act, 1900, and further

16. That (he) between 1 January 2014 and 31 December 2015 at Young in the State of New South Wales, did assault KN, a person then under the age of 16 years, namely 9 or 10 years, and at the time of the assault committed an act of indecency on KN, contrary to s 61M(2) of the Crimes Act, 1900, and further

17. That (he) between 1 January 2014 and 31 December 2015 at Young in the State of New South Wales did assault KN, a person then under the age of 16 years, namely 9 or 10 years, and at the time of the assault committed an act of indecency on KN, contrary to s 61M(2) of the Crimes Act, 1900, and further

18. That (he) between 1 January 2010 and 31 December 2010 at Young in the State of New South Wales did assault KN, a person then under the age of 16 years namely 4 or 5 years, and at the time of the assault committed an act of indecency on KN, contrary to s 61M(2) of the Crimes Act, 1900, and further

19. That (he) between 1 January 2010 and 31 December 2010 at Young in the State of New South Wales, did assault KN, a person then under the age of 16 years, namely 4 or 5 years, and at the time of the assault committed an act of indecency on KN, contrary to s 61M(2) of the Crimes Act, 1900, and further

20. That (he) between 1 January 2010 and 31 December 2010 at Young in the State of New South Wales, did assault KN, a person then under the age of 16 years, namely 4 or 5 years, and at the time of the assault committed an act of indecency on KN, contrary to s 61M(2) of the Crimes Act, 1900, and further

21. That (he) between 1 January 2010 and 31 December 2010 at Young in the State of New South Wales, did assault KN, a person then under the age of 16 years, namely 4 or 5 years, and at the time of the assault committed an act of indecency on KN, contrary to s 61M(2) of the Crimes Act, 1900.

2. The accused sought trial by judge alone. That course was opposed by the Crown. For reasons given ex tempore on 14 November 2018 I granted the application. The matter has had a lengthy history, partly because of the Crown’s application to amend the indictment in respect of counts 18 to 21 inclusive on the indictment and various difficulties in accommodating the availability of both advocates at the same time.

3. The complainant in counts 1 to 9 inclusive is the step granddaughter of the accused. The complainant in counts 10 to 21 inclusive is the granddaughter of the accused. The Crown case is that the various alleged acts of sexual impropriety towards the children occurred at the various homes at which the accused and his wife lived.

Overview or summary of the allegations

4. The following does not constitute any finding of fact; rather it is simply a very brief summary of what is alleged in respect of each of the counts in order that anyone hearing or reading these reasons might more readily understand what follows.

Counts relating to TWN

5. Counts 1 to 6 inclusive relate to the first incident in respect of the complainant TWN, count 7 the second incident and count 8 and 9 the third incident.

6. Count 1 is an allegation that the accused requested the complainant to sit on his lap and when she did so the accused rubbed his hand on her breasts on the outside of clothing; count 2 is an allegation that the accused rubbed the complainant’s vagina on the outside of her clothing; count 3 is an allegation that the accused immediately after count 2 placed his hand under the complainant’s clothing and rubbed the complainant’s breasts; count 4 relates to an allegation that the accused then placed his hand under the complainant’s dress and rubbed her on the vaginal area on the outside of the underpants; count 5 relates to an allegation that the accused then placed his hand under the complainant’s underpants and rubbed her vagina and count 6 is an allegation that the accused took the complainant’s hand and placed it on his penis.

7. Count 7 relates to another incident that is also alleged to have occurred in the home of the accused, where on this occasion it is alleged that the accused while playing with the complainant pulled down her outer shorts (but not her underpants) and touched the complainant on the vaginal area.

8. Counts 8 and 9 are part of the one incident that is alleged to have occurred on an occasion when the complainant stayed overnight and was sleeping in the same bed as the accused and his wife. Count 8 relates to an allegation that the accused rubbed his genital area against the complainant and count 9 relates to an incident that the accused took the complainant’s hand and placed it on his penis on the outside of the clothing he was wearing.

Counts relating to KN

9. The complainant KN only came forward after the accused had been committed for trial in respect of the allegations in made by TWN. Counts 10 to 21 inclusive were added by way of ex-officio action by the Director of Public Prosecutions.

10. The 11 counts relate to three separate alleged incidents of ongoing conduct. Counts 10 to 14 inclusive relate to the first such incident. Initially the case proceeded on the basis that counts 15, 16 and 17 were the second incident and the remaining counts (i.e. 18 to 21 inclusive) related to the third. However during the course of the evidence in chief of KN it became apparent that counts 18 to 21 inclusive related to the second incident and accordingly the Crown sought leave to amend the indictment.

11. In respect of the first incident, count 10 relates to an allegation that the accused touched the complainant on the breast under clothing; count 11 is an allegation of digital penetration and count 12 relates to an allegation that after telling the complainant to get on her knees the accused placed his penis between the complainant’s legs and simulated sexual intercourse to the point where he ejaculated. The accused then told the complainant to go to the garage and she complied. Count 13 relates to an act of fellatio (the accused placing his penis in the complainant’s mouth) and count 14 an allegation that the accused took the complainant’s hand and placed it on his penis while his penis was still in her mouth.

12. I will go to counts 18 to 21 inclusive next as that is the correct chronological order. These four counts are also alleged to have been part of one ongoing episode. Count 18 relates to an allegation that the accused while in the lounge room with the complainant pulled down her pants and underpants and then positioned himself behind the complainant and placed his penis on (but not in) the complainant’s vagina. He then carried the complainant to the kitchen where he put his penis between the complainant’s legs and moved back and forth, which is count 19. He then took the complainant to what was described as the toy room where he had the complainant kneel on a chair and he placed his penis between her legs and against her vagina which is the conduct to which count 20 relates. The accused then took the complainant to the bedroom which she occupied when she slept over. Count 21 relates to an allegation that the accused put his penis between her legs and against her vagina and the accused ejaculated on the complainant.

13. I turn now to the allegations to which counts 15, 16 and 17 relate. These too relate to an alleged ongoing incident. The accused went to the complainant’s home on a Saturday morning. The complainant enquired as to whether her grandmother was home and the accused assured her that she was. The complainant then went with the accused to his home. It is alleged that the accused put on the pornographic movie, “Debbie Does Dallas”. Count 15 relates to an allegation that the accused placed his hand on the complainant’s breast under her clothing; count 16 an allegation that he put his mouth over her breasts and began licking them and count 17 relates to an allegation that the accused pulled down the pants and underpants of the complainant, placed his penis between her legs and simulated sexual activity until ejaculation.

Legal directions

14. I will give myself some preliminary directions, which are of a general nature, some directions as to the law that I will need to apply, a summary of the evidence and a summary of counsel’s submissions. As the trial is by judge alone there is no necessity for any direction as to the roles and functions of the tribunal of law and the tribunal of fact because I am both.

15. It is for me as the tribunal of fact to assess the various witnesses and decide whether they are telling the truth. I have had the opportunity of seeing the witnesses and have had ample opportunity to observe the manner in which they gave evidence. It is entirely for the tribunal of fact to determine what evidence is accepted and what evidence is rejected.

16. My ultimate decision as to what evidence I accept and what evidence I reject may be based on all manner of things, including what the witness has had to say; the manner in which the witness said it; and the general impression which he or she made upon me when giving evidence.

17. In relation to accepting the evidence of witnesses, I am not obliged to accept the whole of the evidence of any one witness. I may, if you think fit, accept part and reject part of the same witness’ evidence. The fact that I do not accept a portion of the evidence of a witness does not mean that I must necessarily reject the whole of the witness’ evidence. It does not mean that I should not accept the remainder of that evidence if I think it is worthy of acceptance. This being a Judge Alone trial it will be necessary for me to give reasons as to why I accept or reject the whole or part of the evidence of any one particular witness.

18. As the tribunal of fact I am entitled to use life experiences, training and experience as a lawyer and as a judicial officer. I can make a value judgment. However, I cannot use that experience to make findings of fact or to draw inferences unless that personal experience satisfies the test relating to common knowledge is s 144 of the Evidence Act, 1995.

19. I have heard addresses from counsel for the Crown and counsel for the accused. I will consider those submissions that have been made in their addresses and give to the submissions such weight as I think fit. In no sense are those submissions evidence in the case.

Onus and burden of proof

20. Firstly, I go to what is undoubtedly the most important direction of any criminal trial; that is the direction relating to the onus and burden of proof. The direction on the onus and burden of proof applies to all of the counts on the indictment. Before I could return a verdict of guilty in respect of any of the counts on the Indictment that is before me, the Crown would need to prove the guilt of the accused and prove that guilt to the criminal standard of beyond reasonable doubt. The words “beyond reasonable doubt” are ordinary English words and they are given their ordinary English meaning. The collective legal wisdom developed over the centuries is that further elaboration by trial judges on the meaning of the expression “beyond reasonable doubt” is neither necessary nor desirable. However, as part of the direction on the onus and burden of proof I direct myself that suspicion, even the gravest of suspicion, cannot amount to proof beyond reasonable doubt.

21. The onus and burden of proof remains on the Crown from beginning to end. There is no onus whatsoever on the accused. It is not for the accused to prove that he is innocent; rather it is for the Crown to prove the guilt of the accused beyond reasonable doubt before a verdict of guilty can be returned.

22. If, at the end of my deliberations - having taken into consideration the evidence both for the Crown and evidence led in the accused’s case in respect of any matter which the Crown must establish to make out its case, and after also taking into consideration the submissions made to me by the Crown and counsel for the accused in their address - I am not satisfied that the Crown has established any one of these essential matters beyond reasonable doubt then it is my duty, as I have said, to bring in a verdict of "not guilty", because the Crown will have failed to do what the law requires it to do.

23. I remind myself that it is vitally important that I clearly understand that an accused must be found "not guilty" if his guilt has not been proved to my satisfaction beyond reasonable doubt. It follows from this, of course, that if I am left unable to decide whether the Crown has proved its case in relation to any such essential ingredient, or if I have a reasonable doubt in respect of that matter, the accused is entitled to the benefit of that doubt and I must find him “not guilty”.

24. In the circumstances of this case before I could return a verdict of guilty in respect of any of the counts 1 to 9 inclusive I would need to be satisfied beyond reasonable doubt of the truth, accuracy and reliability of the complainant TWN. Likewise before I could return a verdict of guilty in respect of any of counts 10 to 21 inclusive I would need to be satisfied beyond reasonable doubt of the truth accuracy and reliability of the complainant KN.

KRM v The Queen

25. Before going to the elements of the charges, given that there is more than one charge that I am considering, for more abundant caution I remind myself, conformably with the decision of the High Court of Australia in KRM v The Queen (2001) 206 CLR 221, that because there are multiple charges there is a danger that I might reason in respect of any one or more of the charges that the accused was the kind of person who might have engaged in improper sexual conduct towards the complainant on the other occasions charged or that he must be guilty of something. Such course of reasoning would be entirely wrong, and I direct myself that I must not use or engage in that course of reasoning. Each charge will need to be considered separately and a separate verdict will need to be given in respect of each of the twenty one charges on the indictment.

25. This case brings this direction into sharp focus. As I understand the situation the joint position of the parties was that as the matter was to be heard by a judge alone that the Crown would call each of the complainants in the one trial. I note that had the matter proceeded as a jury trial both complainants would have given evidence in the one trial as the argument as to the admissibility of the tendency evidence was decided in favour of the Crown. There was an issue of the admissibility of tendency evidence that has already been determined. However, given that there is the evidence of two complainants to consider and there is a total of 21 counts to consider, throughout my consideration of the issues in this tria, I will need to be particularly vigilant to ensure that I consider each charge separately and consider the evidence in respect of each charge separately. Of course, as I have already said, separate verdicts will need to be given in respect of each count on the indictment.

Elements of the charges

27. I will now go to the essential elements or ingredients of each of the charges. At the risk of repetition I again note that I will have to return separate verdicts in respect of each of the charges and that separate consideration will need to be given to each of the charges. However, in some matters the essential elements or ingredients are the same as other charges or counts on the indictment and it is convenient to deal only once with the essential elements.

28. Counts 1 to 9 inclusive in respect of the complainant TWN and counts 10, 12, and 14 to 21 inclusive relating to the complainant KN are all allegations of aggravated indecent assault contrary to s 61M(2) of the Crimes Act. There is a difference, noting that the counts relating to TWN aver that the complainant was under 10 whereas the counts relating to KN aver that she was under 16 years of age. This difference is because of legislative amendment. However, the dates of birth and the ages of the complainants were not ever in dispute at the trial.

29. Before I could return a verdict of guilty in respect of any one or more of counts 1 to 9 inclusive I would need to be satisfied beyond reasonable doubt of the following essential elements or ingredients:

1. The accused assaulted the complainant; and

2. At the time of that assault the accused committed an act of indecency on the complainant; and

3. At the relevant time the complainant was under the age of 10 years.

30. The various counts aver the age of the complainant but that is a particular. The essential element or ingredient is that the complainant was under 10 years of age.

31. CN, the mother of the two complainants gave evidence (p 2 of 17.7.19) that TWN’s date of birth was 25 June 2002 and that KN was born on 8 February 2005. This was not the subject of any dispute at the trial.

32. There does not have to be a separate act of indecency and a separate assault. An indecent assault can be constituted by an improper touching. Whether something is indecent or not is judged by the prevailing community standards of decency. Although a judicial officer I am also a member of the community. I have appeared as counsel in a significant number of trials involving allegations of child sexual assault and I have presided over a number of such trials as a judge of the District Court, including a number of trials by judge alone. I have also presided over a number of matters involving allegations of indecent assault in the Local Court. I maintain I am very well aware of the prevailing standards of decency within the community.

33. I observe however that it was never in dispute at the trial that the alleged conduct was not indecent. The real or live issue is essentially whether as the tribunal of fact I am satisfied beyond reasonable doubt that the alleged conduct in fact occurred. If I am satisfied beyond reasonable doubt that the conduct as alleged did in fact occur then it would follow that I would be satisfied beyond reasonable doubt that the alleged conduct was in fact indecent. I did not understand either counsel to argue otherwise.

34. Before I could return a verdict of guilty in respect of any one or more of counts 10, 12, or 14 to 21 inclusive relating to the complainant KN I would need to be satisfied beyond reasonable doubt of the following essential elements or ingredients:

1. The accused assaulted the complainant; and

2. At the time of the assault the accused committed an act of indecency on the complainant; and

3. At the relevant time the complainant was under 16 years of age.

35. I note that what I have already said about there not having to be a separate assault and act of indecency also applies to the matters relating to KN. Likewise I note the evidence relating to KN’s date of birth. Again, that was not something that was ever in dispute. Likewise, it was never suggested by counsel for the accused that the alleged conduct was not indecent. Again, the real or live issue is whether the Crown is able to prove beyond reasonable doubt that the conduct as alleged in fact occurred. As with the counts relating to TWN, if as the tribunal of fact I am satisfied beyond reasonable doubt that the conduct as alleged did in fact occur then it would follow that I would be satisfied beyond reasonable doubt that the conduct was indecent.

36. Counts 11 and 13 are allegations of Sexual Intercourse with Child Under 10. Before I could return a verdict of guilty to count 11 and/or count 13, I would need to be satisfied beyond reasonable doubt of the following essential elements or ingredients:

1. The accused had sexual intercourse with KN; and

2. That at the relevant time KN was under 10 years of age.

37. Again, I note that the KN’s mother gave evidence that KN’s date of birth was 8 February 2005. It is not in dispute that during the time frame of the averment in the indictment in respect of counts 11 and 13 that KN was under ten years of age.

38. Sexual intercourse has an extended definition at law and includes the penetration of a female’s vagina by a finger or fingers, otherwise known as digital penetration and it also includes the penetration of the mouth of a person by the penis of the accused, i.e. fellatio. Count 11 relates to an allegation of digital penetration and count 13 relates to an allegation of fellatio.

Markuleski direction

39. This direction applies to where there are multiple counts involving the one complainant. I have made clear a number of times that as the tribunal of fact, I must consider the evidence in respect of each charge on the indictment separately. It follows from that that if as the tribunal of fact I have a reasonable doubt as to the truthfulness and accuracy of the evidence of a complainant in respect of one count involving that complainant as the tribunal of fact I can use that reasonable doubt to determine whether I have a reasonable doubt in respect of any of the other counts on the indictment relating to that same complainant.

Inferences

40. This is a matter where I am asked to draw inferences. I remind myself and direct myself in terms of what juries are normally directed on the drawing of inferences. Inferences are conclusions of fact rationally drawn from a combination of proved facts. If A, B and C are established as facts then one might rationally conclude that D is also a fact, even though there might be no direct evidence that D is indeed a fact. Inferences may be valid or invalid, justified or unjustified, correct or incorrect.

41. I remind myself of the illustration routinely given to juries from the Trials Bench Book of the telephone call to a friend. In a criminal trial, as the tribunal of fact, I must be satisfied of the guilt of the accused beyond reasonable doubt. Amongst other things, that means that I should be extremely careful about drawing any inference. I must examine any possible inference to ensure that it is a justifiable inference.

42. In the context of a criminal trial, where proof is required beyond reasonable doubt, as the tribunal of fact I must not draw any inference from the direct evidence unless it is the only rational inference in the circumstances.

CCTV

43. Both complainants gave evidence by closed circuit television from a room remote from the court room and some of the witnesses gave evidence from either a room remote from the court room or remote from Wagga Wagga. No issue was taken with that course by the accused. Again, there is nothing unusual or exceptional about the complainants and the witnesses in giving evidence by way of CCTV or audio visual link. I note that is the manner in which complainants in trials involving these type of allegations is given. I must give the evidence no greater or lesser weight. I must draw no inference adverse to either the accused or any of the complainants. I give myself that same direction in respect of the other witnesses who gave evidence from a location remote from the court room.

KN gives evidence in chief by record of interview

44. The complainant KN gave evidence in chief by way of a pre-recorded interview that was taken at Wagga Wagga on 20 October 2016. The complainant was under 16 years of age at the time and that is the manner in which evidence in chief from persons under 16 years is routinely given in this day and age. I must not give the evidence any greater or lesser weight nor must I draw any inference adverse to either the complainant KN or the accused because the complainant KN gave evidence in that fashion.

Accused gives evidence and calls evidence

45. The accused presented a defence case by giving evidence himself and calling witnesses. That was a course that the accused was entitled to take but it is not a course that the accused was obliged to take. The accused would have been entitled to remain mute and require the Crown to prove its case beyond reasonable doubt.

46. Had the accused remained mute I would have been required to direct myself that no inference adverse could be drawn against the accused by reason of that fact, that there may be good reasons why an accused would not give evidence and I must not speculate on what they may be and that the onus is on the Crown from beginning to end.

47. Later in these reasons I will summarise the evidence of the accused and those witnesses called in the defence case. If having considered that evidence and the submissions of both counsel in relation to it as the tribunal of fact I accept it, then of course I must acquit the accused and bring in verdicts of “not guilty”, because it would follow that the Crown has not established beyond reasonable doubt its case in relation to an essential matter, which it must prove.

48. If, after having given consideration to the evidence of the accused and the witnesses called on behalf of the accused and any evidence which the Crown asks me to take into consideration, as the tribunal of fact I do not positively accept the evidence of the accused, but that evidence leaves me nevertheless with a reasonable doubt as to whether the Crown has made out its case in respect of any essential matter which it must prove, then as the tribunal of fact I am bound, in law, to bring in verdicts of “not guilty”. In other words, it is not the position that as the tribunal of fact I have to believe that the accused is telling the truth before the accused is entitled to be acquitted. As I have previously emphasised it remains the position that the Crown must establish beyond reasonable doubt the charge which it brings against the accused and it is never for the accused to prove that he or she is not guilty. The accused has not assumed any onus because he has elected to give evidence.

49. Further, even if I were to reject the evidence from the accused and the other witnesses in the defence case, before I could return a verdict of guilty in respect of any one or more of the counts as the tribunal of fact I would still need to be satisfied beyond reasonable doubt of the guilt of the accused on the material contained within the Crown case alone.

50. On the subject of the accused giving evidence there is one other matter that I wish to make very clear. It is not simply a case of comparing the versions in the Crown and defence case and indicating which one is preferred. As I have already said a number of times the onus of proof is on the Crown from beginning to end to prove its case beyond reasonable doubt.

Other issues

51. The Crown relies on tendency and relationship evidence. Mr Barron seeks directions in accordance with Mahmood v Western Australia [2008] HCA 1 and R v Louizos [2009] NSWCCA 71 in respect of a number of witnesses who have not been called by the Crown to give evidence.

52. I will return to the relevant directions relating to these issues when dealing with the evidence.

Review of the evidence

53. TWN gave an account of growing up in Young and living with her mother and step father until she left to attend university. The accused is the father of TWN’s step-father. When TWN was about 7 or 8 years of age she began to stay over at the home of the accused and his wife. She attended a local school which was a couple of hundred metres from where the accused and his wife lived at the time.

54. Going to the first incident to which counts 1 to 6 inclusive relate the complainant gave evidence that she had been visiting as opposed to staying overnight (p 4 15.11.18). She identified the relevant house from photographs. She then gave the following account of the events:

Q. What happened, what was the first thing you remember happening?

A. So, I remember his hands over the top of my clothing touching my breast and vaginal area and then--

Q. One step at a time, where did he touch first?

A. My breast area.

Q. Can you describe with which hand?

A. Both hands.

Q. Which breast?

A. Both.

Q. Can you describe how he touched your breasts?

A. Just rubbing in circular motions.

Q. With what part of his hand?

A. The palm of his hand.

Q. How long did he do that for?

A. I can't remember how long it went for exactly.

Q. What was the next thing that happened?

A. So, after my breast he was rubbing my vaginal area. I'm not sure which hand it was, left or right with the same part of his, his palm and his fingers over the top of my clothing.

Q. When you say over the top of your clothing, is the over the top of your dress and your underpants?

A. Yes.

Q. Do you know how long he did that for?

A. Unsure.

Q. When he was doing that, what were you doing?

A. Just kind of sitting there, wanting it to end.

Q. What did he do next?

A. He put his hand up my dress and again, touched my breast area with both hands in the same rubbing motion.

Q. Do you know which hand he put up your dress?

A. No.

Q. Do you know if it was one hand or both hands?

A. Both.

Q. What happened then?

A. He then went to my vaginal area again, doing the same thing on the top of my undies. So, rubbing with his palm and fingers, not sure what hand.

Q. What happened next?

A. Then his hand was down my underpants and the same thing again, rubbing and with his palm and fingers.

Q. Do you know how long he did that for?

A. I am unsure.

Q. Do you know if I was one hand or two hands?

A. The one hand, unsure what hand.

Q. When that was happening do you remember what you were doing?

A. No.

Q. What was the next thing that happened?

A. He grabbed one of my hands, I'm not sure which one and placed it onto his penis on the outside of his shorts.

Q. How were you sitting on him, when you say you were sitting on his lap, how were you seated?

A. Like, not facing him.

Q. When he put your hand on his penis, how did he do that? Where was his penis in relation to you?

A. What do you mean?

Q. Was it behind you, beside you, in front of you, where was it, where did--

A. Behind, like, behind me to the side. I was on one, like, one of his knees.

Q. He took your hand, put it on his penis, what could you feel?

A. I don't know if it was hard or soft, I knew that that's what it was, yeah.

Q. What part of your hand was touching his penis or through his clothing, but what part of--

A. Like, my palm.

Q. What happened then when he put your hand on his penis, what did he do?

A. Not sure.

Q. Do you know how long he had it there for?

A. No.

Q. Do you remember what happened next?

A. I just remember, like, either, like, calling out to Vicki or, or saying "Stop" or crying and then it would not continue.

55. In respect of the second incident she said that she was 7 or 8 years of age (p 10 line 5, 15.11.18). The account continued:

Q. Do you know what time of year it was?

A. Summer.

Q. Why do you say it was summer?

A. I remember wearing shorts.

Q. Do you remember who else was home, if anybody?

A. I believe [Accused’s wife] was home.

Q. You were in the lounge room, what happened?

A. I was in the lounge room lying, like, on the floor. [GN] was play wrestling with me.

Q. What was he doing when you say play wrestling?

A. Just, like, playing around wrestling, like, over the top, you know, I, I don't know how to explain it.

Q. What happened?

A. So, he pulled down my shorts and was touching my vaginal area with his hands.

Q. When you say, he pulled down your shorts, did you have anything on

underneath your shorts?

A. Yes, I had undies on.

Q. When you say he was touching your vaginal area, was that underneath or outside your underwear?

A. Outside.

Q. Again, how did he touch you, what part of his hand?

A. It was with his palms and fingers.

Q. What did he do with his palm and fingers?

A. So, he was rubbing them on my vaginal area.

Q. Do you remember how long he did that for?

A. I'm unsure.

Q. Do you know how that particular incident ended?

A. I don't know how it ended. I only have a general idea of what I would have done.

56. TWN maintained that after the second incident she spoke in general terms to the accused’s wife about the accused’s indecent conduct towards her and nothing happened after that conversation. The conduct relating to counts 8 and 9 (third incident) is alleged to have occurred before TWN had that conversation with her grandmother. It was put to TWN in cross-examination (p 29/45) that she did not speak to the accused’s wife about the allegations but she maintained that she did.

57. When TWN stayed overnight with the accused and his wife she slept in the bed with the accused and his wife. She maintained that she felt safer there as she was worried if she slept elsewhere in the house. On the occasion to which counts 8 and 9 relate TWN gave the following account in her evidence in chief:

Q. What was the first thing you were aware of?

A. I remember, like, waking up and feeling [GN] rubbing his body up against mine.

Q. What part of his body?

A. The front of his body.

Q. Against what part of your body?

A. The front, back and side.

Q. What was the first thing you became aware of, where was he rubbing you?

A. My back.

Q. What did you do when you felt him rubbing your back?

A. I changed positions.

Q. What did he do when you changed positions?

A. Continued rubbing his front of his body up against my body.

Q. What part of the front of his body?

A. The side - the, the front of his body was on the side of my body.

Q. How was he rubbing you?

A. Just like rubbing up and down of - not like his - the front of his body on my body.

Q. What happened after that?

A. I just remember changing positions until like I woke up [Accused’s wife].

HIS HONOUR

Q. I'm sorry what was that, did you say [Accused’s wife].woke up?

A. Yes.

SOLICITOR ADVOCATE: Until she woke up [Accused’s wife]..

HIS HONOUR

Q. Until she woke up, sorry?

A. Yep.

SOLICITOR ADVOCATE

Q. How did you wake up [Accused’s wife].?

A. Just by, like, grabbing her and saying "Nan".

Q. What did she do when you did that?

A. I don't remember, I just--

Q. How long was he rubbing up against you for?

A. I'm unsure how long.

Q. How many times did you change positions?

A. Three or four.

Q. What did he do when you changed positions?

A. He stopped doing what he did for a little bit, and then continued rubbing his body against mine.

Q. When you say "rubbing" how was he rubbing? First of all, he's lying in the bed?

A. Yep.

Q. Was he lying on his back, side, front, how was he lying?

A. On his side, so his - he wasn’t - he was facing the middle of the bed.

Q. You say that you woke your grandmother up?

A. Yeah.

Q. What happened after you woke her up?

A. I said I wanted to go home.

Q. Did you go home?

A. Yes.

58. The evidence continued:

Q. Apart from those incidents you've talked about, the one in the lounge room on the chair, the one in the lounge room when you're wrestling, him rubbing himself against you in the bed and the occasion where you woke up with something wet on you, were there any other incidents you can recall?

A. In the occasion in the bed, the one where he was rubbing his body up against mine, he also grabbed my hand in that occasion and placed it on his penis as well.

Q. When he did that, how were you lying?

A. Pardon?

Q. How were you lying when he did that, at the point in time when he grabbed your hand?

A. I don't remember if I was on my side or on my back.

Q. When he grabbed your hand, what did he do?

A. He placed it on his penis.

Q. What was he wearing?

A. I don't, I don't remember what he was wearing.

Q. Do you remember if he was wearing something?

A. Well, he would’ve had pyjamas on. It was on top of clothing.

Q. What could you feel when he put your hand there?

A. I don't remember if it was, like, hard or soft.

Q. How did you know it was his penis?

A. I knew that it was that area of the body that I was touching.

Q. What part of you was touching it?

A. My - the palm of my hand.

Q. What did he do when he put your hand there, what was the next thing he did?

A. He just, like, made me rub it, his penis.

Q. How?

A. In a circular motion.

Q. Apart from telling your grandmother that he'd touched you, did you tell anybody else?

A. No.

59. There was a celebration to celebrate KN’s tenth birthday and to farewell TWN who was leaving Young to go to university in early 2015. The day after that celebration TWN was tidying up KN’s room. She found a book in which she found a note, “I hate my pop”. That night TWN spoke to KN who on the evidence of TWN said, “Pop’s been touching me”. KN does not have a memory of that conversation with TWN. The book also contained notes by KN relating to the allegations that she makes against the accused. According to TWN, KN was “crying, like inconsolable” (p 21/47 15.11.18) when they were talking about what TWN had found. It was after these notes were found that TWN and KN told their mother of the conduct of the accused towards them.

60. TWN also gave an account of another incident to which no specific charge relates and which I understand was led as context or relationship evidence. At pp 14-15 of 15.11.18 TWN gave an account of staying overnight with the accused and his wife and sleeping in their bed. She woke to find a sticky wet patch on her stomach. She woke her grandmother and asked if she could get changed as she felt uncomfortable. Her grandmother assisted her in getting changed. The next morning the accused’s wife told TWN’s mother that TWN had wet the bed.

Direction – context or relationship evidence

61. The Crown also relies on the uncharged acts as relationship or context evidence. There is a very limited use to which I can put this evidence as the tribunal of fact. As context or relationship evidence, the evidence is led to explain why the relevant complainant did not complain earlier, why the counts on the indictment did not come out of the blue so to speak and further to explain why given the frequency with which the conduct is said to have occurred why the complainants cannot be more specific about particular instances of that conduct. The relationship or context evidence cannot be used by me as the tribunal of fact in determining whether any one or more of the counts on the indictment have been proved beyond reasonable doubt.

62. Further, so far as the context or relationship evidence is concerned, it would be entirely wrong and inappropriate for me as the tribunal of fact to engage in a line of reasoning that the accused was the type of person who would commit the offences as alleged against him or that he must be guilty of something. I must be careful only to use the context or relationship evidence in the manner to which I have referred.

Return to review of the evidence

63. Mr Barron cross-examined TWN comprehensively and on a number of occasions asked whether she told anyone of the alleged conduct. She replied on each occasion that she did not – see for e.g. p 30; p 35/47; pp 41-2.

64. It was put and denied that she had in fact wet the bed on the occasion of waking to the wet sticky substance on her. It was also put (p 37/41) but TWN disagreed that the only grandchild who slept in the bed with the accused and his wife was a baby.

65. TWN admitted under cross-examination that she continued to have sleep overs and that she continued to regularly visit the accused and his wife – see for e.g. p 36/3; 41/31. In further cross examination at p 54 TWN conceded without hesitation that it was the accused who was the “main person” who taught her to drive and that he assisted her when she experienced mechanical issues with her car.

66. There was quite extensive cross-examination on the book in which TWN is said to have found the notes by KN relating to the alleged indecent conduct towards her. It was put to TWN on a number of occasions that she had simply made up or fabricated the evidence about finding the book. It was also put to TWN quite strongly that she and KN had “put their heads together” or collaborated in the manufacture of those notes. That allegation was repeatedly denied by TWN – see for e.g. p.44/45; 45/48; 46/1; 46/21.

67. There is, of course, no obligation on an accused to raise any motive for a complainant to fabricate allegations against an accused. It is for the Crown to prove its case beyond reasonable doubt against the accused. However, in this matter the accused not only suggested a motive but suggested that motive quite vigorously to both complainants. It is the case for the accused that TWN was jealous in that there is a suggestion by the accused that she was not treated like the other “natural” grandchildren. It was put to TWN and denied (p 46/35) that she made up the allegations because of jealousy, because she always felt that she was an outsider and not a biological grandchild.

68. On this same issue it was put to TWN and denied that she and KN “put their heads together to write the notes”. It was again put and again denied (p 50/5‑14) that TWN told her sister KN to make up the complaints about the accused at her (i.e. TWN’s) instigation.

69. The motive being raised by the accused can be considered by me as the tribunal of fact. It is the case for the accused that not only did TWN manufacture her allegations by reason of this alleged jealousy but then was able to persuade KN to likewise manufacture extremely serious allegations against the accused and then proceed to trial with them.

70. The allegations are detailed and this is particularly so with the allegations by KN. Some of the cross-examination of the complainants was directed towards the suggestion that despite the alleged conduct life continued as normal, e.g. the suggestion to TWN that she continued to have sleep overs at the home of the accused.

71. It occurs to me as the tribunal of fact that had TWN been experiencing the jealousy as alleged to the point where she was prepared not only to manufacture these allegations but also persuade KN to fabricate more serious allegations then that jealously would have manifested itself also in other ways (i.e. beyond the allegations themselves), particularly with attitude and behaviour towards the accused and his wife and would have been blatantly obvious to all concerned.

72. There is nothing in the evidence to suggest that TWN had anything other than a quite close relationship with her grandparents despite what she says happened to her when she was younger.

73. I reject the suggestion that the allegations by TWN had their genesis in the jealously as alleged on behalf of the accused.

74. Mr Barron on behalf of the accused puts forward a number of matters which on his submission impact adversely on the credibility of TWN. For example, in her evidence in chief in respect of counts 1 to 6 (first incident) she uses the expression (p 8/34), “…and then the same thing again…” The point made is that they are not the same thing. With respect to Mr Barron this is really a matter of semantics. It seems to me as the tribunal of fact the TWN was describing a rubbing type motion.

75. Likewise when describing that same incident TWN described sitting on the accused’s lap and then changed the evidence to being on one of the accused’s knees. I note at p 8/50 it was the Crown Prosecutor that used the word “lap” in the question. TWN said that she was not facing the accused. At p 9/9 she said she was on one of his knees but at p 27 she said in answer to a question by Mr Barron and a further question by me that she could not remember. Read as a whole the answers are not inconsistent and in my view as the tribunal of fact do not impact adversely on the credit of TWN.

76. In a similar vein Mr Barron submits on the detail given by TWN in describing the accused taking her hand. At p 8/47 in evidence in chief she said that, “he grabbed one of my hands, I’m not sure which one and placed it onto his penis on the outside of his shorts”. Under cross-examination (p 28/4-12) she said it was her left hand. The issue had been raised in evidence in chief and Mr Barron went through the incident quite painstakingly. This, it seems to me as the tribunal of fact is a very minor point in any event and in the general scheme of things taking the evidence of the complainant as a whole does not in my view as the tribunal of fact adversely impact on the credibility of TWN. The painstaking examination of the minutia of the incident is generally not particularly helpful.

77. In respect of the second incident Mr Barron on behalf of the accused submits that the court would have an issue with the credibility of TWN because she cannot recall how that ended. TWN was giving evidence of an incident that occurred some years ago. It is not surprising that she cannot remember how it ended.

78. Mr Barron made the point a number of times in his closing address relating to all of the counts relating to TWN that TWN continued to stay over at the home of the accused and his wife. I note that part of the re-examination (p 50/30) as recited by the Crown in the outline of the closing address that, “They were my grandparents, like of course, they love you and you love them, no matter what…” At some superficial level there may be issue about TWN continuing to stay over. However, it seems to me as the tribunal of fact that answer in re-examination answers that point. When the whole of the evidence is examined it is obvious to me as the tribunal of fact that TWN was wishing to maintain a façade of normality.

79. In respect of the third incident, i.e. the incident to which counts 8 and 9 relate, Mr Barron submits that TWN was fabricating the story because she initially at p 13/43 gave an account of the accused rubbing against her and then a little later in the evidence in chief at 15/28 giving an account of the accused taking her hand and placing it on his penis. The submission continued that if giving a true account it would have been given chronologically. Reading the evidence as a whole I am not sure that it is the same incident being recounted at p 13 and at p 15. However, even if it is, it was still in evidence in chief. It was put globally to TWN that she fabricated the allegations. However, I cannot see in the cross-examination where it was put to TWN that the allegation of the accused taking her hand on this occasion on placing on his penis on the outside of what he was wearing was not in her original statement. She cannot remember whether the penis was hard or soft. At p 39/32 Mr Barron asked, if that had actually happened that would be something you would remember wouldn’t it?” The answer given was, “not necessarily”. As the tribunal of fact that answer that TWN gave to that question makes perfect sense to me.

80. Submissions are also made that as the tribunal of fact I would have issues with TWN’s credibility because of lack of complaint to her mother. I will deal with complaint evidence when dealing with the evidence of the mother of the two complainants. However, the absence of complaint does not mean that the allegations are false. This is completely consistent with what I have already described as TWN seeking to maintain the façade of normality. In any event she complained to the wife of the accused. It was at the home of the accused where these events are alleged to have occurred.

81. On the issue of the complaint made by KN, TWN said (p 47/5) that all KN said was “Pop has been touching me” and she pointed at her vaginal area.

82. TWN was a very impressive witness. I have often observed that it is far more difficult to express in words why as the tribunal of fact a witness is accepted rather than rejected. TWN remain composed and answered the questions in a very matter of fact and direct fashion. There was never a hesitation in her answering the questions. The answers were always succinct and responsive.

83. I agree with the Crown’s submissions that TWN gave a detailed account of each of the incidents. Further, it is noteworthy that the accused’s wife was nearby on each of the occasions. As the Crown correctly submits, if the allegations were fabricated it would have been easy for TWN to simply say that the accused’s wife was not in the house. There are no suggestions of force or threats by TWN in her evidence.

84. Further, there was no particular animosity demonstrated by TWN towards the accused or his wife in her evidence. I note that part of the re-examination (p 50/30) as recited by the Crown in the outline of the closing address that, “They were my grandparents, like of course, they love you and you love them, no matter what…”

85. I have carefully considered the matters raised by Mr Barron on behalf of the accused as to why I should reject or at least have a reasonable doubt about the evidence of TWN. I have gone into some detail in respect of a good number of those submissions and dealt with the evidence. At the end of the day and after careful consideration of those issues I cannot perceive any particular reason to entertain a reasonable doubt about the truth, accuracy and reliability of TWN.

86. I now go to counts 10 to 21 inclusive, i.e. the allegations made by KN. The bulk of KN’s evidence in chief was by way of pre-recorded interview and I remind myself of the directions already set out in respect of that issue. I note the effect of the decision of NZ v R (2005) 63 NSWLR 628 however I note that neither party had any objection to me retaining a transcript of the record of interview to assist in the preparation of these reasons. It is alleged there are three distinct or separate episodes of offending. Counts 10 to 14 inclusive relate to the first, 18 to 21 to the second and counts 15, 16 and 17 to the third. I have already explained that the Crown sought and obtained leave to amend the indictment. In this regard I note also the judgment given ex tempore on this issue on 19 November 2018.

87. KN’s date of birth is 8 February 2005. In 2010 the accused and his wife were living at an address in Young. KN attended a school that was very close in proximity to the house. On one occasion not long after KN had commenced school the accused collected her from school and took her home. The account in the pre-recorded interview is a little disjointed and precisely in the same order as the counts on the indictment.

88. At Q/A 129 KN said that at the beginning of this incident the accused said to her something like, “This will be fun, don’t worry, this isn’t wrong, everyone does this”. He then pulled his pants down and her pants down –p 61 Q/A 130. He then touched her on the chest area or her “boobs” – see Q/A 130-137. The touching was under the clothing – Q/A 139. This is the conduct to which count 10 relates.

89. Count 11 is an allegation of digital penetration detailed at Q/A 144-155. She gave an account of his hand drifting down to her stomach then to her vaginal area, him rubbing in a circular motion and then putting his fingers in her vagina. She could feel the fingers on the inside. He asked “Do you like this, does this feel good?” She kept telling him to stop but he did not.

90. Count 12 is an allegation of an aggravated indecent assault, the details of which KN recites at question 62, 63, 64 and further detail is given at question 158 and continuing to 189. The accused positioned the complainant on her knees in front of the lounge and put his penis between her legs and he moved back and forth. KN was careful to say that the accused’s penis was touching her vagina but did not go inside. She said it felt a long time. She gave an account of the accused breathing heavily and saying, “Yeah, yeah, yeah, yeah” after which some white or yellow stuff came out of his penis.

91. The answers to questions 181 to 183 are quite compelling in my opinion.

Q181:   Penis. And how do you know that happened?

A:   Because I was looking down like that, and he, and he was, he was, he was going fast at the start, moving back and forth, and then he started slowing down.

Q:   Yep

A:   And then, us, and then his breath stated going (DEMONSTRATES VERBALLY) – like really heavy and then I looked down then white stuff was…

Q:   Where did it go?

A:   It went over the lounge, in between my legs and on my thighs

92. Clearly the complainant KN was describing in some detail a male experiencing sexual climax and ejaculation. I remember the playing of the recording. The demonstration was graphic. The accused used a face washer to wipe up the ejaculate. The Crown describes the account in the outline of submissions as “extraordinarily detailed account”. It is difficult to disagree with that description.

93. Immediately following this, KN pulled up her pants and the accused told her to go to the garage, which she did. (Q/A 64). The accused went to a briefcase and produced a pornographic magazine and then engaged in an act of fellatio by putting his penis into the complainant’s mouth. The complainant marked on a photograph the area of the garage from where the briefcase came – see pp 79-80 of 19.11.18 At Q/A 191 she said, “And he opened it, and he got out a dirty magazine, and he said, and he told me to look at them, and then placed his penis in my mouth and for me to hold it like that”. At Q/A 213–217 she describes the accused forcing her head onto his penis.

94. Count 14 followed immediately thereafter. This is another allegation of an aggravated indecent assault. The accused took the complainant’s wrist and placed her hand on his penis and made her “go up and down” – see Q/A 218-227. This happened for a short time because the accused heard a car. Further detail was given that the accused’s wife returned home in the car and sounded the horn. The accused quickly pulled up his pants. KN ran upstairs and went to the bathroom and was crying. She told her grandmother (Q/A 246) that she was not feeling well and that she wanted to go home.

95. Counts 18 to 21 inclusive are the next matters chronologically and I will therefore go to them before going to counts 15, 16 and 17. When the matter commenced it was understood that counts 18 to 21 inclusive related to the third of three episodes of alleged offending towards KN.

96. KN said in her evidence at p 82 line 27 to p 84 line 10 the following:

Q. The first incident that you talk about, where you ended up in the garage.

A. Mm‑hmm.

Q. The second incident, was that before or after that one, the garage incident?

A. After.

Q. Do you know how long after?

A. No, sorry, I don't.

Q. Do you know how old you were then?

A. I think I had just turned five, because my birthday is in February. So it was after February, maybe.

Q. Talk about in positioning you so that you were kneeling against the lounge.

A. Yes.

Q. I think in the video you demonstrated that, how you knelt?

A. Yeah.

Q. Looking again at photograph 11. So there's the lounge that you describe being on the wall on the right‑hand side of the photo?

A. Yeah.

Q. Where the other lounge is, where the pictures are on the wall, that's where the television is?

A. Yeah.

Q. [Accused’s wife] and [GN]’s chairs were to the bottom of that photo.

A. Yeah.

Q. But you can't see that area.

A. Yep.

Q. Where do you say you were when he knelt you down against the lounge?

A. I - I was on the lounge across from the window.

Q. So in this photo where the two blue chairs are?

A. Yeah.

Q. That's how that particular incident started in the lounge room?

A. Yeah.

Q. Then you say that he moved you to different areas in the house?

A. Yes.

Q. That was this house that's depicted in the photographs?

A. Yes.

Q. You spoke about another incident.

A. Yes.

Q. That was an incident that happened in [Named] Road?

A. [Named]. [Named] Street.

Q. It's [Named] Street?

A. Mm‑hmm.

Q. I'm going to ask for you to be shown envelope number 1. Do you see in there that there's 14 coloured photographs?

A. Yeah.

Q. Again these were photographs that you were shown last week?

A. Mm‑hmm.

Q. Sorry. Page 14 is blank so really it is 13 photographs.

A. Yeah.

Q. Do you recognise the house depicted in those photographs?

A. Yes. I do.

Q. What house is that? Which--

A. That's [Named] Street. That was down the road from [Address], where I lived.

Q. This is where you say the third incident happened?

A. Yes.

Q. This is where you were at home and the accused came around and asked for you - if you wanted to go to his house?

A. Yes.

Q. Looking at first of all photograph 1 are you able to say - what room is that in the house?

A. That was the front lounge room.

97. It was this evidence that led the Crown to seek to amend counts 18–21 inclusive to aver that the conduct occurred in 2010 when KN was 4 or 5 years of age. This application led to the matter being adjourned. Difficulties then arose finding suitable dates for the availability of both advocates.

98. The ongoing incident to which counts 18-21 relate has been referred to the “different rooms incident”. It is alleged that the accused engaged in sexual activity with KN in various rooms of the house in which he was then living.

99. KN’s account of count 18 appears to commence in answer to question 477 of the record of interview. She describes being in the lounge room of the house; the accused pulled down her pants and placed his penis between her legs. The account continued that he placed his penis on her vagina but not inside and that she was facing away from the accused When asked at Q 494, “OK and did white stuff or yellow stuff come out of his penis on that occasion or not?” She answered, “Um, yes, but he kept moving me from place to place…(A 495) And then once we finally got to mine and [AAA]’s room, then it came out”. The issue of ejaculation is the subject of further questions and answers – see Q/A 534 and continuing.

100. I make the observation that the account given by KN again gives a clear account of ejaculation but moreover the account comes across as being somewhat matter of fact leaving me with the impression that it was not the first time that she had witnessed that occur.

101. From the lounge room they went to the kitchen – see Q/A 498-9. In answer to q 499 she said, “He did the exact same thing, but this time he laid me down like this and put and did the exact same thing, put his penis in between my legs on vagina not in it”. The accused’s hands were preventing KN from moving – see Q/A 503. She went on to explain that he had her hands with one of his hands and her ankles with the other hand.

102. Counts 20 and 21 are described in answers to Q/A 513 and continuing. From the kitchen they went to the toy room where there was a really old chair and the accused obliged KN to face the chair and did the same thing, i.e. place his penis on her vagina. From the toy room they moved to the bedroom that KN and others shared when they were staying at the accused’s home. At Q/A 521 KN says, “He did the exact same thing as he did in the toy room, and the lounge room and forced me on my knees to face…the lounge, the bed with my face on the bed”. The accused carried KN to this bedroom – see Q 524-5. KN’s underpants that had been around her ankles had fallen off.

103. After describing the events to which counts 18-21 relate KN gives an account of the accused engaging in correction so far as her co-operation was concerned. The following appears at p 60 of the transcript of KN’s record of interview:

Q. 550: Do you remember what he would, what he said on this particular day?

A:   I said, Oh, I want to see [IM] and [AM] (cousins)? And then he’s like, No, you’re not going to. I’m like, and I yelled and said, I want to see [IM], and [AM]. And then he’s like, you know what you have to do. And I’m like, Yes I do, I don’t want to. And then he’s, like, and then, he walked over and he pulled my pants down and proceeded to do---

Q. 551: OK. So did that happen on every single, single occasion, or just some occasions?

A:   Um, every single occasion that I was left alone with him

104. Further, at Q 592 KN said that apart from the specific instance of which she gave an account there were other occasions on which the accused put his penis in her mouth. At Q 644 she gives an account of there being other occasions of the accused placing his penis between her legs. In answer to Q 645, KN said that on each occasion “white stuff” would come out of the accused’s penis.

105. The evidence that I have just detailed that does not relate to any particular count was led by the Crown as relationship or context type evidence. I repeat the warning already set out in respect of the complainant TWN as to the very limited use to which this evidence can be put. The evidence cannot be used by me as the tribunal of fact in making a determination whether any one or more of the charges on the indictment are proved beyond reasonable doubt. The context or relationship can only be used to explain why the specific counts did not come “out of the blue” as it were or to explain why the complainant did not make an earlier complaint or to explain the lack of specificity in respect of any of the counts on the indictment.

106. Counts 15, 16 and 17 relate to what was generally referred to in the course of the trial as the “Debbie Does Dallas” incident.

107. The accused would regularly visit the complainant’s home on a Saturday morning (Q 284 KN’s ROI). On one such occasion the accused drove KN to his home and told her that he wanted her to show her a “cool western”. The following is the answer to question 286 of KN’s record of interview:

“It was Debbie does, does Dallas, I think it was, yep. And he made me watch it, and it was about these cheerleaders who needed to raise money to go away, and they had this business where they did, did sexual things with other meN, and um, and they’re, and that, because they were raising money to go away and they did sexual things. And it made me really uncomfortable, and then he, he was touching himself, and then he came up to me and started touching me. And then pulled my shirt up and put his mouth over my breasts and then, and then I pushed him away, and got up and went to the toilet. And I was in there for a little while, and I peed, and I came back out. And, um, then I sat back down, and he got up and walked over to me again, and the movie was still playing. And he pulled down his pants in front of me, and grabbed my hand and, and made me touch his penis.”

108. Count 15 relates to the allegation that the accused touched KN on the breast on the outside of clothing, count 16 relates to the allegation that the accused put his mouth over the complainant’s breast and count 17 relates to an allegation that the accused placed his penis between the complainant’s legs and ejaculated. The answers of KN are expanded upon in the record of interview following the answer to question 286.

109. Count 15 is expanded upon at Q/A 359–363 and count 16 expanded upon at Q/A 369–374. At Q/A 375 and continuing KN gives an account of the accused pulling her pants and underpants down, forcing her to her knees saying, “get to your knees”. In answer to question 388 the following appears:

“And then he put his penis between my legs and in my vagina, like I said, and then he proceeded to go back and forth, back and forth, back and forth, back and forth until white stuff came out. And the he got the face washer, and cleaned it again”.

110. At Q/A 393 KN said it was exactly the same as the last time; in answer to Q 394 said that the penis did not go into her vagina and at Q 396 said touching her vagina. KN also gave an account at Q 390 of, after cleaning up the ejaculate, the accused opened the blinds. KN’s brother [EN] was outside on his bicycle. KN heard [EN] “chucking skids” after the accused had opened the blinds. I observe that the evidence of the accused opening the blinds is a particular and as the tribunal of fact in my opinion a significant detail.

Impression of KN as a witness

111. The cross-examination of KN by Mr Barron on behalf of the accused was very thorough and painstaking. Every possible inconsistency was examined in minute detail. Mr Barron submits that there were numerous inconsistencies in the evidence of KN that would lead a tribunal of fact to reject the account of the alleged improper sexual conduct by the accused as a fabrication or at the very least lead the tribunal of fact to have a reasonable doubt about that evidence.

112. Initially in answer to questions by investigating police KN said that the first incident occurred when she was three. In answer to question 61 she says, “OK. Well, I don’t remember how it started or how old I was, but I do remember when I was about 3 years old I was at his house where, what street was it near [Sydney suburb]?” When prompted it was [Named] Street KN continued, “[Named] Street and their house, I could walk from school to their house and sometimes they would pick me up from school And one day he came and picked me up, but Nan, Nan [Accused’s wife] wasn’t there, she wasn’t at home. And he pulled down his pants in front of me, and then he proceeded to pull down my pants and my underwear and touched me in my chest area and in my vagina”.

113. Mr Barron makes the point that KN simply would not have been at school when she was three years of age. That much can be taken as being correct. However, the accused and his wife did live at an address in [Named] Street that was very close to the school that KN attended. Under cross examination (p 170 see generally lines 1-17) the accused said that the school would have been two to three minutes’ walk from the house. The accused strongly denied ever picking up the complainant KN from school essentially saying that he simply did not have the opportunity to do what she alleges.

114. However, as the tribunal of fact it occurs to me that if a child was so intent on fabricating these allegations against the accused it is extremely unlikely that such an obvious error in indicating the age of three would be made.

115. On the issue of the age, Mr Barron on behalf of the accused seeks to make some capital out of KN saying that she was three and then “changing” her version to her being older. The submission was put that this detracts from KN’s credibility. The following appears at Q/A 67-69 of MFI 2:

Q 67:   OK. You said, um you initially said that you thought you might’ve been three?

A:   Uh-huh. Around about three.

Q:   Around about three

A:   It could have been five, three, or five

Q:   OK

A:   But I was toddler.

116. It occurs to me that KN was simply saying she was quite young. In any event, it is more than tolerably plain that KN maintains that counts 10 to 14 inclusive occurred at a time soon after she commenced kindergarten. The same applies to KN’s evidence as to precisely when it was that the conduct to which counts 10 to 14 relate. The following appears at Q/A 83 -86 of MFI 2:

Q 83:   Do you remember what class you were in on this particular day this happened? Do you remember---

A:   Was in---

Q 84:   ---

A:   ---kindergarten definitely. I think it was like, my fifth day at kindergarten.

Q 85:   OK. What makes you think that?

A:   Because I was new to the school, I didn’t really know many of the places, I didn’t have that many friends, so I couldn’t really talk to anyone. Um and then, I remember I was upset ‘cause no-one would talk to me and that, and that he hugged me and walked me down to the house.

Q 86:   OK. So you think it was the beginning of kindergarten?

A:   Uh-huh

117. When read as a whole KN is merely saying that the conduct occurred at or near the beginning of kindergarten. Further, as the tribunal of fact I am of the opinion that there is a real “ring of truth” about that portion of the answer about her being upset because no one would talk to her and that he hugged her.

118. Further criticism is made of KN’s evidence when the answers to questions 61 and 119-120 are compared. The order of events is reversed. This indicates, it is argued, that the allegations are manufactured. There is also the issue of precisely when the conduct is said to have occurred, i.e. whether it was the first or fifth day of kindergarten or some other days. Connected with this is what KN was wearing – i.e. sports uniform or other uniform.

119. Submissions for the accused continued that there was also uncertainty as to the number of the fingers used by the accused in respect of count 11, i.e. the allegation of digital penetration. The submission at least as I understood it was that this too is an indication that the allegations are false. The following appears at p 113/13-29:

Q. He didn't touch your vagina either, did he?

A. He did.

Q. Pop at no stage inserted his fingers in your vagina, did he?

A. He did.

Q. How many fingers do you say he inserted in your vagina?

A. I can't remember. Like, I blocked out most of it.

Q. But you're certain it was a multiple? More than one?

A. Could have been, yeah.

Q. Could have been, so you're not sure?

A. I'm not sure.

Q. The reason you're not sure is because it didn't happen, isn't that right?

A. No.

120. Another example of inconsistencies relates to count 12, i.e. the allegation that the accused placed his penis between her legs. Mr Barron drew attention to p 117/35 where KN was unsure of the direction she was facing yet in her evidence in chief she was facing the lounge. Further in respect of this count the submissions continued that in her evidence in chief (Q/A 169) KN said that the accused’s penis was there (meaning at her vagina) for 30 minutes. It was put on behalf of the accused that this defies logic and common sense,. As the tribunal of fact it occurs to me that the complainant was saying no more or less than it seemed to her to be taking a very long time.

121. It was put to KN but denied that her father had a collection of pornographic magazines. KN said that she did not know (p 130/26). It was also put to KN that her father had a “rude movie collection too”. KN said “No” to that suggestion (p 130/29). I note that it was not suggested to KN that she had seen the scenes of “Debbie Does Dallas” as she described somewhere else such as at home.

122. The issues of the “rude magazines” and “rude movies” were not pursued with any other witness, in particular the mother of KN and wife of KN’s father. In these days of the internet collections of pornographic magazines are probably rare in any event. Mr Barron sought a direction in relation to absence of evidence from KN’s father – as well as a number of other witnesses. I will return to this issue later in these reasons.

123. It is put that it is highly unlikely that anyone intent on engaging in inappropriate sexual conduct with a young child would do so with the garage door open. The Crown’s response is that if the complainant was going to fabricate the allegations it would have been very easy for her to say that the garage door was closed. Submissions were also made about the logistics and mechanics of counts 13 and 14 occurring.

124. On KN’s account her grandmother, the wife of the accused, drove up to the house and sounded the horn. KN maintained that she went up the stairs and locked herself in the bathroom. At p 123 on 16 July 2019 there appeared to be some criticism of KN for running from her grandmother, who could have saved her from what was happening.

125. Mr Barron makes an appropriate criticism about the leading questions being asked by the investigators so far as counts 18-21 are concerned. Again, submissions are made directed towards the unlikelihood of these allegations being true given what the complainant said about the manner in which they occurred, i.e. being carried from one room to the other.

126. To my mind there is one issue that resolves the issue as to whether KN was fabricating her account: namely the very graphic and highly detailed description of the male sexual climax and ejaculation. The Crown draws attention to this in the outline of the closing address. In particular I note the answers to questions 181 to 183 inclusive of MFI 2 that I have already extracted when dealing with KN’s evidence in chief. I note also Q/A 186 of MFI 2, namely, “Did he wipe it off you as well?” to which KN replied “Uh-huh”. Question 187 is “Yep. And the lounge?” to which KN replied, “Uh-huh”. See also Q/A 188 namely, “Did he wipe it off anywhere else?” The answer was, “No, ‘cause it was nowhere else”. A child of the age of KN at the time of the interview simply should not have known about ejaculation. I found not only the account of the ejaculation utterly compelling but also the account of the accused cleaning up afterwards.

127. Mr Barron asked rhetorically in his address, “From where did the face washer materialise?” Face washers are common commodities in homes. Something like a face washer is an obvious object to use for the cleaning up of the mess described by the complainant.

128. The same issue arises with counts 18 to 21 on the indictment. Again, as the Crown submits, KN gave a particularly detailed account of the accused ejaculating. I have already extracted Q/A 494–495 when dealing with the evidence in chief relating to these counts. I have also referred to Q/A 534 and continuing on the issue of KN describing ejaculation. As the tribunal of fact the answers to questions 538 and 539 appeared to have a particular ring of truth given in particular the content and the matter of fact manner in which the issue is described:

Q 538:   And where did that go?

A:   It went all over me and all over the bed.

Q.539:   OK. And what did he do?

A.   And then he got a face washer and cleaned it up.

129. It was at that point of the interview that KN went on to detail the accused contacting RM and arranging for her to see her cousins. To my mind there is real substance to the argument advanced by the Crown that this detail of contacting RM is not the type of “superfluous detail” one would expect from an 11 year old child who was intent on fabricating these series of allegations against the accused.

130. Returning to the issue of KN describing ejaculation, as the tribunal of fact I found the few answers in re-examination at p 173 of 16.7.19 quite compelling:

Q. I refer in that incident to “cleaning something up”?

A. Mm-hmm.

Q. You were asked some questions about “that being on the lounge”?

A. Yes.

Q. Can you describe what it was that he cleaned up?

A. It’s that stuff that came out of the tip of his penis, I can’t - I don’t know what it is.

Q. What was he doing immediately before that came out?

A. He was like moaning kind of and saying yeah a lot and then his breathing was very heavy and then it came out.

131. In particular I found that part of the answer at lines 16 and 17 very compelling indeed in that, “It’s that stuff that came out of the tip of his penis, I can’t – I don’t know what it is”.

132. KN also gives a graphic account of ejaculation when describing count 17, which is one of the counts of the “Debbie Does Dallas” incident. I note that Exhibit J is an extract from Wikipaedia setting out the plot of the movie. KN gave a very detailed account of the plot it would seem. Clearly she had seen the movie. It was suggested in cross-examination to KN that her father had a collection of pornographic magazines. She said that she did not know. As I have already pointed out this was not pursued with the complainant’s mother. I do not see in cross-examination that it was suggested that she saw the movie “Debbie Does Dallas” in other circumstances.

229. RM, another daughter of the accused gave evidence on behalf of the accused – see p 233 24/7/19. She gave an account (p 234/31) of collecting her daughter IM from the disco of which IM gave evidence. RM recounts that “[KN] said something about some letters…she told me that her and [TWN] wrote – [TWN] helped her write half of the letters…”

230. The difficulty for the accused so far as the evidence of RM is concerned is, as the Crown submits, a complete and utter lack of objectivity. RM maintained that she had read the whole brief including the transcript of MFI 2, the pre-recorded interview of KN. RM was taken in cross-examination to that part of MFI 2 where KN is explaining the ejaculation. RM maintained (p 239/45) that that did not for a second make her doubt that KN’s account was a fabrication. At p 238/30 she said she agreed she was “very strong” on the allegations being a fabrication.

231. The following appears commencing p 236/35:

Q. Since you were shown the letters and you decided it could never have happened?

A. Never, never, never.

Q. That’s because in your mind it did not matter what [KN] said, you would not believe it?

A. That's right.

Q. You wouldn’t believe it unless it was - or even if it was on video, would you?

A. No.

Q. You’d say that must be doctored?

A. (No verbal reply)

Q. Did you ever speak to [TWN] about what she says your father did?

A. Never.

Q. Again, it would not matter what [TWN] said, you would never believe it?

A. That's correct.

Q. That’s because to you your dad is a good dad?

A. He’s a fantastic father and grandfather.

Q. Really loving, devoted grandfather, isn’t he?

A. Yes.

Q. Because of that in your mind this could never have happened?

A. Never.

Q. He couldn’t be a devoted and loving grandfather who at the same time was sexually abusing two of his grandchildren?

A. He would never do that.

Q. You say he would never do it. How would you know if he had?

A. Don’t really know. We've always been around him.

233. Curiously however RM asked IM whether the accused had touched her (p 241). I agree with the Crown’s submission and assessment that RM became very evasive at that part of the cross-examination. She was pressed a number of times as to why that question was asked in the circumstances of her not accepting that the allegations were true. She replied a couple of times to the effect of, “it was just a question I asked”. RM also spends a great deal of time with the accused and his wife and is dependent upon them for babysitting on a regular basis.

234. VN, the accused’s wife, gave evidence in the case for the accused. She maintained that neither she nor the accused ever picked KN up from school (p 252). She went on to say that there was never an occasion she came home and found KN crying in the bathroom. Further, there was never an occasion when KN called out in distress (p 253). She denied that TWN had ever said anything to her about the accused touching her inappropriately (p 253).

235. The evidence continued that she never saw TWN on the accused’s knee. The transcript reflects that I intervened at that point of the evidence to indicate that a grandchild sitting on a grandfather’s knee would hardly be anything unusual. VN maintained it never happened. As a matter of common experience and common sense as the tribunal of fact I have the most enormous difficulty accepting that an occasion of a grandchild sitting on a grandfather’s knee would be so unusual.

236. Further VN said (p 255) that there was never an occasion when TWN wanted to go home early, that there was never an occasion that she wet the bed on a sleep over and that TWN would get into the bed in the morning. She denied having any knowledge of the accused ever touching any of his grandchildren inappropriately and she further denied ever making a joke of this (p 256).

237. Evidence was given by VN concerning the alleged conflict over a christening gown that was initially purchased for KN on the understanding that other grandchildren would wear it.

238. VN was then asked (p 257 and continuing) about the notes, exhibit B. I have made the point already about the lines and absence of lines on the notes. I note also at p 258 line 30 the following appears:

Q. Do the pages in exhibit B appear to be the same?

A. No.

Q. What appears to be different?

A. The ones I read “ghosts up the hallway of nan and pop’s, zombies eating my family, left me having sex with pop and I hate pop.” And they were on a plain piece of paper, A4 paper no lines.

Q. So you don’t feel that those are the same--

A. They are not the same--

Q. --pages that you saw?

A. --as I read. Definitely not.

Q. Are the contents similar to what you read?

A. No they’re - no.

239. At the risk of repetition I note that neither TWN nor KN or for that matter CN were asked under cross-examination anything to the effect of the notes being different. This is a significant issue given the importance and significance of those notes. It seems that those notes were the reason that the formal complaint was made against the accused.

240. The evidence continued commencing p 258/49:

Q. What happened after that, was anything else said between yourself, [CN], [TN], [GN]?

A. I told her to go.

Q. Did you say anything to [GN]?

A. I asked [GN] did it happen and he said no and I believe him, because strongly in my heart I would not be standing by him if I thought for a minute.

Q. The pages you read certainly contained an allegation that [GN] had touched--

A. Yes.

Q. –[KN] inappropriately, correct?

A. Yes we did ask [CN] had she taken her to a doctor, no.

Q. So you asked her that day did you?

A. That night yes.

Q. What did you say?

A. We just – [GN] and I said, has she been to a doctor to prove this and she said no.

Q. How did that conversation end?

A. Not good, I ordered her out of my house.

241. I note that there is nothing in that account about VN hitting the wall or the table.

242. VN went on to give evidence about the garage and the shelving and further that the accused did not have a lockable briefcase (pp 262-3). She maintained that she was not aware of any pornography in the house. The evidence continued that KN never slept in the bed with her and the accused during sleep overs (p 266). She never noticed anything unusual about her lounge (p 265-6).

243. As the tribunal of fact I found the last few questions of the cross-examination of VN quite telling. The following appears at p 306/21:

Q. I suggest to you that it's just a complete nonsense that the notes you were handed were not the ones that you’ve seen in Court today?

A. Three of my other children also seen them.

Q. Again that is just something that you're saying to try and help [GN] out?

A. No, I am not. I just wish I had taken those notes [CN] handed me.

Q. And you have no objectivity when it comes to this situation do you?

A. My husband did not do it.

Q. You're prepared to say whatever you can or do whatever you can no matter how absurd if it means helping him out?

A. If I thought he was doing that I would protect my grandkids from him. But they are not frightened or they weren't frightened of him. They loved him. That's not a normal child.

244. VN in saying, “that is not a normal child” is still blaming the child and is firmly of the opinion that the child is fabricating.

245. Returning to the issue of the notes and the conversation with TN and CN the following appears at p 280:

Q. You didn’t ever speak to [KN] or [TWN] about what they were saying?

A. No never.

Q. You asked [GN] a question about it?

A. Yeah.

Q. He answered?

A. “No no way”, he said no.

Q. So far as you were concerned that was the end of the matter.

A. We were devastated. It would never, ever going to be the end of it. It's going to be with us for the rest of our lives. My family will never be the same because of this.

Q. That's right, and immediately when you saw those letters, first you formed a very strong view that there's no way that your husband had done this.

A. No.

Q. You also formed a very strong view that the girls had made this up?

A. I just couldn’t believe that they would say. They love their pop.

Q. That's right.

A. They loved him. Why him?

HIS HONOUR

Q. Well, first of all just going to the Crown's questions. You didn't quite get around to answering them. Did you form that firm belief that what you read was not true?

A. Not true.

Q. Did you also form the belief that the girls had made it up?

A. Yes. I can't believe they would do this.

HIS HONOUR: They were your questions, weren't they Madam Crown?

SOLICITOR ADVOCATE: They were, your Honour.

WITNESS: Why did stay in contact with--

SOLICITOR ADVOCATE

Q. Just listen, I'm asking some questions. So how long did it take you to decide, (1) he didn't do it, and (2) these girls have made this up?

A. Straight away.

Q. In an instant?

A. Yes.

Q. The only input you've had is having a look at the letters and [GN]’s denial?

A. And the, the, the book that I got like with all this. Not this one but how - what the girls had said. And as I read through it I just could not believe it that they could do this to my 15 year old granddaughter.

Q. You didn't want to believe it did you?

A. It didn't happen. It did not happen.

Q. Do you understand nobody is saying that you were immediately there when any of this happened?

A. What do you mean, sorry?

Q. Nobody is saying you were in a position to see any of these instances that the girls say happened?

A. It never happened. It never happened.

Q. Immediately you became angry?

A. Yes.

Q. You punched a wall?

A. No, I hit the table. I punched the table.

Q. You were so angry that you hit the wall - you say table?

A. Yes, table.

Q. You yelled for [CN] to get out of your house?

A. Yes, and my son still stood there, and she kept saying, "She's told us to get [TN]. Now come on." And he still stood there in disbelief himself I think. Where is he in all this?

Q. You didn't make any further enquiry? So after [TN] and [CN] left your house no further enquiry?

A. [TN] we - my daughter was talking--

HIS HONOUR

Q. No, I think you can probably answer that with yes or no. Did you make any further enquiry?

A. As to what, communication with the family?

SOLICITOR ADVOCATE

Q. With the girls?

A. Not with the girls, no. Except, yep, [KN] on Easter Sunday.

Q. You spoke to other family members shortly after?

A. Yes.

Q. After [CN] and [TN] left?

A. Yes.

Q. Right from the start you were saying to other family members first of all that [KN] has made this up?

A. Yes.

Q. Because you didn't know about [TWN] at that time?

A. No.

Q. When did you first become aware that [TWN] was saying--

A. When my husband was called to the police station.

Q. At the time you saw those letters in May of 2015 you were not working at that time?

A. No.

Q. You hadn't been working since 2013?

A. Yes, two years I had off work.

Q. You'd retired effectively?

A. Yes.

Q. So January 2013?

A. When I finished?

Q. Mm-hmm.

A. June - I don't know. It was early in year anyhow, half way through.

Q. Of 2013?

A. Yes.

Q. So therefore [GN] was bringing the income into the house?

A. Yes.

Q. You were in that sense at least financially dependent upon him?

A. Yes.

Q. You were concerned about people finding out about this, about what [KN] and [TWN] were saying?

A. Well, they made sure of that.

HIS HONOUR

Q. No, were you concerned about people finding out about the allegations?

A. No, because they supported us and knew it wouldn’t be true.

246. At p 292 VN gave evidence about checking the accused’s pay records to ensure that he was paid properly.

Conclusion

247. I have now thoroughly reviewed the evidence. It will be tolerably plain from what I have said that I accept the complainants TWN and KN beyond reasonable doubt. Many of the issues raised on behalf of the accused are of little if any consequence and to an extent seek to go into every detail of the minutia of the evidence. This is no criticism of Mr Barron who appeared for the accused and who I might say did an admirable job. The examination of the minutia was about all he could do given the nature of the case against him.

248. I was particularly impressed with TWN and KN as witnesses. I note that both made appropriate concessions, e.g. TWN concerning the accused helping her learn to drive and both of the complainants as continuing some type of relationship with the accused and his wife. As I have often observed it is far more difficult to explain why a witness is accepted as a witness of truth rather than to explain why a witness is not accepted. I have carefully considered all of the submissions made on behalf of the accused. I remain firmly of the view that I am satisfied beyond reasonable doubt of the truthfulness, accuracy and reliability of TWN and KN.

249. For the reasons given, in particular the issues relating to the truck diaries that I went into in some detail when dealing with the evidence of the accused I reject his evidence of the denials. I have given reasons why I also reject the evidence of the other witnesses called in the defence case.

Verdicts:

250. In respect of count 1, namely

That you between 21 August 2003 and 21 August 2005 at Young in the State of New South Wales, did assault TWN a person then under the age of 10 years, namely 7 or 8 years and at the time of the assault committed an act of indecency on TWN, contrary to s 61M(2) of the Crimes Act, 1900

I find you guilty.

251. In respect of count 2, namely:

That you between 21 August 2003 and 21 August 2005 at Young in the State of New South Wales, did assault TWN a person then under the age of 10 years, namely 7 or 8 years and at the time of the assault committed an act of indecency on TWN, contrary to s 61M(2) of the Crimes Act, 1900

I find you guilty

252. In respect of count 3, namely:

That you between 21 August 2003 and 21 August 2005 at Young in the State of New South Wales, did assault TWN a person then under the age of 10 years, namely 7 or 8 years and at the time of the assault committed an act of indecency on TWN, contrary to s 61M(2) of the Crimes Act, 1900

I find you guilty

253. In respect of count 4, namely

That you between 21 August 2003 and 21 August 2005 at Young in the State of New South Wales, did assault TWN a person then under the age of 10 years, namely 7 or 8 years and at the time of the assault committed an act of indecency on TWN, contrary to s 61M(2) of the Crimes Act, 1900

I find you guilty.

254. In respect of count 5, namely

That you between 21 August 2003 and 21 August 2005 at Young in the State of New South Wales, did assault TWN a person then under the age of 10 years, namely 7 or 8 years and at the time of the assault committed an act of indecency on TWN, contrary to s 61M(2) of the Crimes Act, 1900

I find you guilty.

255. In respect of count 6, namely

That you between 21 August 2003 and 21 August 2005 at Young in the State of New South Wales, did assault TWN a person then under the age of 10 years, namely 7 or 8 years and at the time of the assault committed an act of indecency on TWN, contrary to s 61M(2) of the Crimes Act, 1900

I find you guilty.

256. In respect of count 7, namely

That you between 21 August 2003 and 21 August 2005 at Young in the State of New South Wales, did assault TWN a person then under the age of 10 years, namely 7 or 8 years and at the time of the assault committed an act of indecency on TWN, contrary to s 61M(2) of the Crimes Act, 1900

I find you guilty.

257. In respect of count 8, namely

That you between 21 August 2003 and 21 August 2005 at Young in the State of New South Wales, did assault TWN a person then under the age of 10 years, namely 7 or 8 years and at the time of the assault committed an act of indecency on TWN, contrary to s 61M(2) of the Crimes Act, 1900

I find you guilty.

258. In respect of count 9, namely

That you between 21 August 2003 and 21 August 2005 at Young in the State of New South Wales, did assault TWN a person then under the age of 10 years, namely 7 or 8 years and at the time of the assault committed an act of indecency on TWN, contrary to s 61M(2) of the Crimes Act, 1900

I find you guilty.

259. In respect of count 10, namely

That you between 1 January 2010 and 31 December 2010 at Young in the State of New South Wales, did assault KN a person then under the age of 16 years, namely 4 or 5 years and at the time of the assault committed an act of indecency on KN, contrary to s 61M(2) of the Crimes Act, 1900

I find you guilty.

260. In respect of count 11, namely

That you between 1 January 2010 and 31 December 2010 at Young in the State of New South Wales, did have sexual intercourse with KN, a child then under the age of 10 years, namely 4 or 5 years, contrary to s 66A(1) of the Crimes Act, 1900

I find you guilty

261. In respect of count 12, namely

That you between 1 January 2010 and 31 December 2010 at Young in the State of New South Wales, did assault KN a person then under the age of 16 years, namely 4 or 5 years and at the time of such assault did commit an act of indecency on the said KN, contrary to s 61M(2) of the Crimes Act, 1900

I find you guilty.

262. In respect of count 13, namely

That you between 1 January 2010 and 31 December 2010 at Young in the State of New South Wales, did have sexual intercourse with KN, a child then under the age of 10 years namely 4 or 5 years, contrary to s 66A(1) of the Crimes Act, 1900

I find you guilty.

263. In respect of count 14, namely

That you between 1 January 2010 and 31 December 2010 at Young in the State of New south Wales, did assault KN a person then under the age of 16 years, namely 4 or 5 years and at the time of such assault did commit an act of indecency on the said KN, contrary to s 61M(2) of the Crimes Act, 1900

I find you guilty

264. In respect of count 15, namely

That you between 1 January 2014 and 31 December 2015 at Young in the State of New South Wales, did assault KN a person under the age of 16 years, namely 9 or 10 years and at the time of the assault committed an act of indecency on KN, contrary to s 61M(2) of the Crimes Act, 1900

I find you guilty.

265. In respect of count 16, namely

That you between 1 January 2014 and 31 December 2015 at Young in the State of New South Wales, did assault KN a person then under the age of 16 years, namely 9 or 10 years and at the time of the assault committed an act of indecency on KN, contrary to s 61M(2) of the Crimes Act, 1900

I find you guilty

266. In respect of count 17, namely

That you between 1 January 2014 and 31 December 2015 at Young in the State of New South Wales did assault KN a person then under the age of 16 years, namely 9 or 10 years and at the time of the assault committed an act of indecency on KN, contrary to s 61M(2) of the Crimes Act, 1900

I find you guilty

267. In respect of count 18, namely

That you between 1 January 2010 and 31 December 2010 at Young in the State of New South Wales did assault KN a person then under the age of 16 years namely 4 or 5 years and at the time of the assault committed an act of indecency on KN, contrary to s 61M(2) of the Crimes Act, 1900

I find you guilty.

268. In respect of count 19, namely

That you between 1 January 2010 and 31 December 2010 at Young in the State of New South Wales, did assault KN a person then under the age of 16 years, namely 4 or 5 years and at the time of the assault committed an act of indecency on KN, contrary to s 61M(2) of the Crimes Act, 1900

I find you guilty.

269. In respect of count 20, namely

That you between 1 January 2010 and 31 December 2010 at Young in the State of New South Wales, did assault KN a person then under the age of 16 years, namely 4 or 5 years and at the time of the assault committed an act of indecency on KN, contrary to s 61M(2) of the Crimes Act, 1900

I find you guilty

270. In respect of count 21, namely

That you between 1 January 2010 and 31 December 2010 at Young in the State of New South Wales, did assault KN a person then under the age of 16 years, namely 4 or 5 years and at the time of the assault committed an act of indecency on KN, contrary to s 61M(2) of the Crimes Act, 1900

I find you guilty.

271. I wish to thank both counsel for the attention they both gave to this matter. Both parties were well represented. I wish to thank counsel for their patience in waiting for these reasons noting the difficult personal issue with which I was confronted in January.

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Amendments

26 March 2020 - paragraph [157] - removed school name

Decision last updated: 26 March 2020